Permanent and total

This is another labor case of a seaman who incurred work-related disability. The question arising here is the kind of disability he suffered which determines the amount of compensation he should receive. This is the case of Jason, an Able Seaman employed by NB Shipping U.K. Ltd. (NB) through its local agent (PTC) for a period of nine months with a basic monthly salary of $588 exclusive of overtime time pay and other benefits.

After barely six months on his job aboard NB’s vessel M/S Nautilus, Jason was diagnosed by the company doctor to be suffering from “Angina Pectoris, Arterial Hypertension after he complained of chest pains while pushing drums full of caustic soda. Hence upon the doctor’s recommendation he was repatriated to the Philippines on August 12, 2002 to undergo further heart investigation and surgery if necessary.

Jason was then confined at the St Luke’s Medical Center under the care of Dr. Al, the locally designated company physician, and he underwent coronary angiography and angioplasty all at the expense of the company. He was also paid sickness allowance for 120 days.

After undergoing post-surgical check-ups, Dr. Al declared Jason fit to resume former work and cleared to return to his job as seaman with proper maintenance medicine. But because his chest pains and dizziness persisted, Jason sought a second opinion from Dr. Vic, an independent cardiologist who diagnosed him to be suffering from “hypertensive cardiovascular disease” with his left anterior coronary artery having an impediment grade of 68.66%. Dr. Vic thus declared that Jason was unfit to resume work as seaman in any capacity as his illness is work aggravated requiring lifetime medication to control blood pressure and prevent re-occlusion of his coronaries.

As member of the seaman’s union (AMOSUP) with which NB and PTC had a CBA, Jason thus asked for full payment of his disability benefits. But NB and PTC refused. So he filed a complaint before the NLRC to recover permanent total disability compensation, damages and attorney’s fees. Because of the conflicting opinions of Dr. Al and Dr. Vic, the parties agreed to refer Jason for examination by a third physician, Dr. Rey of the Philippine Heart Center.

After examining Jason, Dr. Rey issued a medical certificate with findings similar to those of Dr. Vic. So on June 25, 2005, the Labor Arbiter rendered a decision in favor of Jason awarding him $60,000 disability compensation based on the provision of the existing CBA plus 10% attorney’s fees of $6,000. This ruling was affirmed by the NLRC except for the attorney’s fees which was reduced to $1,000.

On appeal however, the Court of Appeals (CA) found that while Jason’s disability was permanent, it was only partial since the third physician, Dr. Rey, found him to have only a disability impediment of 68.66%. So it reduced the award to $34,330 and deleted the attorney’s fees since there was no basis for awarding said fees. Was the CA correct?

No. Permanent disability is the inability of a worker to perform his job for more than 120 days regardless of whether or not he loses the use of any of his body. Total disability on the other hand does not mean absolute helplessness. What is necessary is that the sickness or injury must be such that the employee cannot pursue his usual work and earn therefrom.

The Labor Code concept of permanent total disability should be applied to Filipino seafarers in keeping with the avowed policy of the State to give maximum aid and full protection to labor. Such concept is intimately related to the worker’s capacity to earn. What is compensated is not his injury or illness but his inability to work resulting in the impairment of his earning capacity. Hence disability should be understood less on its medical significance but more on the loss of earning capacity.

In this case, Jason remained unemployed from the time he was medically repatriated on August 16, 2002 up to the time he filed his complaint for disability compensation on July 14, 2003 or almost 11 months. On the other hand, the third physician Dr. Rey, whose findings are final and binding on the parties, certified that Jason is suffering for a life risk and work related heart ailment and he is unfit to resume work as seaman in any capacity as his illness is work related which significantly matches that of Jason’s physician, Dr. Vic. Hence Jason’s disability is permanent and total and he should be awarded $60,000 compensation and $1,000 attorney’s fees as ruled by the NLRC (Iloreta vs. Philippine Transmarine Carrier Inc. et al. G.R. 183908, December 4, 2009). –Jose C. Sison (The Philippine Star)

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

*      *      *

E-mail at: jcson@pldtdsl.net